JURIST Guest Columnist Carl Tobias of the University of Richmond School of Law says that although President Bush said he would consult with the Senate before nominating a replacement for Justice Sandra Day O'Connor, the nomination of White House counsel Harriet Miers reflected no real consultation…

The second effort to replace Justice Sandra Day O’Connor, which officially began on September 21, abruptly ended Monday with the nomination of Harriet Miers, the White House counsel. A dozen days earlier, President George W. Bush had met with the identical Senate leaders who attended a July 11 session which opened the first search. That meeting seemed an auspicious beginning, insofar as President Bush vowed to cooperate with the Senate, particularly through meaningful consultation. True consultation was essential because O’Connor cast the swing vote on many critical issues and Democrats promised to oppose any nominee who might upset the Supreme Court’s delicate balance. However, no real consultation occurred before Miers’s Monday nomination.

Bush had suggested he would follow a process like that employed when initially choosing Judge John Roberts. The president once again vowed to consult fully with the Senate. In conducting the search which yielded Roberts, Bush pledged that his advisers, such as Andrew Card, would secure Senate members’ opinions about the process. The White House has been fond of reminding the public that it spoke with the vast majority of senators; however, that statistic meant little if the president and his counselors did not listen.

Bush’s apparently conciliatory remarks seemed to augur well. However, his record of engaging in little actual consultation belied those views. When the chief executive and his staff talked with Democrats before the Roberts nomination, they may not have heard or applied the ideas Democrats espoused. Senator Leahy (D-Vt.), who attended both meetings, said consultation “never resulted in any meaningful discussions,” and the “President never shared his thinking, as is the nature of true consultation.” Indeed, when Bush first named Roberts, it was a surprise, not a “result of meaningful consultation,” while he “then preemptively announced” Roberts’s nomination for chief justice with no consultation. After the latest meeting, Leahy added: “I hope President Bush will share with us his intention, and even seek our advice before he acts; that little thing called the advice-and-consent clause of the Constitution.”

Despite the recent promise to consult, there was virtually no pre-nomination consultation on the latest nominee. On September 27, White House press secretary Scott McClellan declared “I think we were essentially wrapping that [consultation] process up today.” He asserted that 70 senators and 17 of the 18 Judiciary Committee members were consulted. However, McClellan seemingly arrived at these overinflated figures by conflating consultation in the first search with the new search. In fact, the White House apparently consulted only a minuscule number of senators. Even that consultation was severely truncated. For instance, Miers ironically had a few-minute conversation with Senator Charles Schumer (D-N.Y.), who described it as “consultation in name only.” He elaborated: “There is no back and forth. It’s just, ‘Give us some names.’ I said to her, ‘Look, I’d like to know who the president is considering.’ And she didn’t say anything.”

Harriet Miers may ultimately prove to be a highly qualified nominee who secures approval as easily as Judge Roberts. For example, the confirmation process and Judiciary Committee hearings may reveal that Miers possesses great intelligence, integrity, independence and industriousness as well as balanced temperament, attributes which Roberts so capably demonstrated. Miers’s experience in the White House, on the Texas State Lottery Commission and the Dallas City Council, as Texas and Dallas Bar President, and as the leader of a substantial law firm could also diversify the Supreme Court, all of whose present members, except O’Connor, are former federal appellate judges. However, if the confirmation process somehow goes awry and devolves into a contentious fight, President Bush and his advisers can blame themselves for not freely and fully consulting senators, closely listening to what they said and actually implementing the advice given.

Carl Tobias is the Williams Professor of Law at the University of Richmond
——–